The Supreme Court on Aug 2, 2018 termed as “manifestly arbitrary” a penal provision which required a woman to have her husband’s consent to indulge in adultery with another married man and said it amounted to treating women as “chattel”.
A five-judge Constitution bench headed by Chief Justice Dipak Misra, however, drew the distinction between adultery as a criminal offence and as a civil wrong which has been used as a ground for seeking divorce in matrimonial disputes.
The apex court, which was hearing a petition challenging the constitutional validity of Section 497 (adultery) of the IPC, said, “As far as criminalisation or decriminalisation of adultery as an offence is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by estranged couple in a court of law.”
The bench, which also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was critical of different aspects of section 497 and referred to a part which said that no offence of adultery is made out if a married woman enters into a sexual relationship with a married man with the consent of her husband.
“If there is consent of husband, then there is no adultery which is absurd. This is another indicator of gender bias in which a woman is considered as chattel,” the bench said.
“Definitely the matrimonial sanctity aspect is there, but the way the provisions are enacted or made run counter to Article 14 (Right to Equality of the Constitution),” it said.
Section 497 of the 158-year-old IPC says: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.”
The bench referred to the submission of the Centre in its affidavit and said the provision was there to save “sanctity or marriage” or “matrimonial ties” and then pointed out inconsistencies in law.
“If a married man has sexual intercourse with unmarried woman, this is alright. No adultery is made out. But, does it still not affect sanctity of marriage,” the bench asked.
“Look at the next part, if a married man has sexual intercourse with other married woman with the consent or connivance of her husband then also no offence is made out,” it said.
Terming the provision as not being “gender neutral”, it referred to the classical test of “manifest arbitrariness” and “discrimination” under Article 14 (right to equality) to examine the validity of a law.
“On arbitrariness test, the fact that husband’s connivance will not make it a crime is manifestly arbitrary,” the bench said, adding that going by the classical test of Article 14, there was “no intelligible differentia for achieving the object which is protecting sanctity of marriage”.
It then referred to offence of bigamy under Section 494 of the IPC and said that it is gender neutral as it punishes both husband and wife and said that section 497 only provides for punishment to the husband only.
“The distinction between section 494 (bigamy) and section 497 (adultery) itself makes section 497 unconstitutional,” the bench said.
Advocate Kaleeswaram Raj, appearing for petitioner Joseph Shine, an Indian living in Italy, referred to various facets of Section 497 and said it treats married men and women differently with regard to their prosecution for adultery.
The lawyer said he was not challenging adultery as a ground for seeking divorce by estranged couple.
He said though the provision provided for prosecution of men only and but he was not seeking to make it gender neutral as it was “inherently flawed”.
“(Lord) Macaulay (author of IPC) himself did not want to include this provision in the IPC,” the bench said.
Section 497 was “indirectly discriminatory” towards women under Articles 14, 15 (prohibition of discrimination) and it gave an impression that it was protective of women but it was is not and rather conceived them as chattel incapable of decision making, he said, adding that it was a kind of “patriarchal” protection.
The provision cannot be either read down or made gender neutral and rather it has to be struck down, he said.
A woman cannot file a complaint against her husband if he has sex with unmarried woman, though her grievance is the same as that of man, he said.
It discriminated against the women as it impinged the sexual freedom of married women but did not do so with respect to married men, he said.
Senior Advocate Meenakshi Arora, appearing for one of the intervenors, referred to the history behind the provision and said it was premised on the belief that women were chattel of their husbands and their paramours were thieves who should be punished.
The jurisprudence behind adultery was not “to protect bodily integrity of women” but to protect men’s control over wife’s sexuality and the fundamental structure of Hindu society was to preserve land, woman and rituals, he said.
“If adultery has its basis in woman being a property of man, then Section 497 has to go for that reason alone,” she said.
She also referred to jurisprudential values prevailing in 14th and 15th century Europe and said women were either properties of their fathers or of their husbands and were abducted in wars as chattels.
The advancing of arguments would resume on August 7.